Elder Law

09/01/2017

It’s hard to say no when someone you love asks for help, but when it comes to money, helping a senior with paying bills or grocery shopping could turn into a felony.

A simple transaction, like writing out a check or accepting cash for groceries for a senior, even if it’s for your very own mother, doesn’t seem like a bad thing to do. However, the potential for a simple act of kindness to be perceived as criminal activity against a senior is very real.

Elder law attorneys hear of financial elder abuse suspicions and actual abuse on a regular basis. Therefore, just because a senior asks for your help, doesn't mean you should help. This is because things can get complicated.

Once you get involved, you may see that there are many moving parts. There could be an already-troubled senior who’s paying some bills twice and some not at all, or donating money to questionable organizations. Their finances may be in disrepair. Remember, if you don't have the time and aren’t ready to take on a complex process with legal implications, just say no.

Power of Attorney. A power of attorney gives the holder authority to execute certain transactions. While you don't need an estate planning attorney to create up a power of attorney (POA), you're taking a chance if you choose the do-it-yourself route. If you need to obtain a guardianship (or conservatorship) for the senior, you’ll need an elder law attorney. A guardianship gives you the authority to take control of the senior’s finances. There will be a court hearing, and you’ll have to present medical records and be represented by an attorney.

Minimize Risks. It is important to try to minimize the risks for the senior and maximize financial accountability. Monthly bills, like utilities, can be directly debited from the senior's bank account. You should never sign the senior’s name on checks or credit card purchases. They may insist that it is okay, but they would be wrong.

Record-keeping. Regardless of the amount of authority you have been given to help a senior or control their finances, it's crucial that you keep meticulous records to protect yourself. POAs should hang on to receipts for everything and never combine their money with the senior's money. You should never borrow money from them, and don’t fall into the trap of believing you’re entitled to money because their family is never involved. That’s financial exploitation, and it is a criminal act.

Talk with family members regularly. Even if the senior tells you that their family does not care or isn’t interested, protect yourself with ongoing communication with more than one family member. There may be factions, vendettas and private agendas within the family that you are not privy to. It is essential that you document everything and have regular meetings. You can also share reports with these family members.

As an extra layer of protection for yourself, you may want to have a conversation with the family‘s estate planning attorney. If there is no attorney involved, be extra cautious, since you may be wading into a swamp of litigation and accusations.

08/28/2017

Without an estate plan, you leave your loved ones with an expensive, time-consuming and extremely stressful series of problems, according to The Huffington Post’s, “5 Consequences of Avoiding Estate Planning.” Trust us, it’s not how you want your family to remember you. Here’s what they will have to deal with once you are gone:

Court. Your family will need a court order to access your funds, if you become incapacitated or die. You also need to consider whether your family take care of your pets, pay your mortgage, other bills and pay for the cost of your funeral if you unexpectedly pass away. If your family is financially dependent on you, how will they take care of their own needs after you pass?

Probate Expenses. The costs of probate can be significant. Because your family members are bound by the court’s rulings, they might have to spend money on legal fees and get legal representation.

Time. Probate can take months or years to settle your estate, depending on the complexity of the estate and the complexities of your family. The court will designate an executor to your estate, and a family member or a disgruntled heir can contest their portion of the distributions. This adds considerable time and cost to the settling of your estate.

Your wishes ignored. If you don’t detail how you want your estate to be divided, the judge may go with the obvious first choice, a surviving spouse. But is that what’s best and what you want? You should have thought about what happens if he or she remarries and whether the inheritance will pass to the children of the other family instead of your own. Only proper estate planning can ensure that your children and grandchildren will be the ultimate beneficiaries of your estate.

Assets in multiple states. If you have property in multiple states, it can be subject to multiple probate courts, creating separate issues for your vacation homes and investment properties. This means additional probate, time and expense.

It’s not difficult to avoid this kind of a mess. You should meet with an experienced estate planning attorney to create an estate plan that will work for you and your family. Remember that you are doing more than protecting assets: you are protecting the people who you love from stress which in many cases, leads otherwise regular families to become divided and in some cases, estranged.

08/23/2017

Caring for a loved one with Alzheimer’s disease puts families through an emotional and financial struggle that many are just not equipped to deal with.

The number of families who will be involved with care of a senior with Alzheimer’s or another type of dementia is staggering. In 2016, more than five million Americans were living with the debilitating disease, for which there is no cure and only limited treatment.

Doctors say that unusual behavior can be an early sign that a person may be suffering from some form of mental decline or impairment. Examples of this are getting lost while driving in a familiar area or wearing dirty clothes when the senior has previously been meticulous about his or her dress. The symptoms of Alzheimer’s become more apparent as time goes on. This can often be a source of discord among family members, because it’s painful to acknowledge that parents are declining and are not behaving as they used to. This denial sometimes creates tension.

With the cost of care and the burden it frequently puts on the family, communication and preparation are critical. Advance planning can’t be stressed enough, since roughly 60% of family caretakers use a portion of their own funds to cover the cost of care.

Caregiver abuse is also common in financial abuse cases where the typical scenario is an older adult left one-on-one with a 24/7 caregiver. Women sometimes will take advantage of elderly men in what develops into an intimate relationship.

Often the caregiver may encourage the senior to sign documents to transfer funds or property. Any kind of assets that can be transferred through only one signature, are particularly vulnerable to financial elder abuse. Family members need to remain in close proximity with the senior to protect them from exploitation by paid caregivers. There are also many cases of financial elder abuse by family members. A group effort from the family with a great deal of communication may be helpful in keeping everyone accountable.

08/11/2017

Before you decide that a reverse mortgage is the solution, make sure you understand how it works and what the total cost will be.

The basic concept of a reverse mortgage is that it lets you take equity out of your home so that you can afford to stay in the home. You have to be 62 or older to get a reverse mortgage and it is understood that the costs will be higher than a regular mortgage, but the need for cash, the ability to stay in the family home and tap equity that would otherwise be locked up, makes it a good solution for many seniors who own their homes. There are pitfalls to be aware of.

When parents pass away, their homes are commonly inherited by their children. In the case of parents with a reverse mortgage, however, the children could also be named in a foreclosure. This can come as quite a shock to adult children. Seniors also may not understand that they have to keep paying for the upkeep of the home. If you’re married and there’s just the one name on the mortgage, it could also spell trouble for your spouse.

The rules state that if you’re out of the house for a year, the reverse mortgage company is allowed to foreclose. In addition, a reverse mortgage may not provide enough cash to assist you, especially if you need around-the-clock at-home care costing as much as $12,000 a month. Despite these dangers, a reverse mortgage still may be right for you.

A reverse mortgage would be a good option, if a person insists on staying in the home and they have a family caregiver.

There are also Medicaid programs that may help pay for nursing home care, as well as waiver programs through Medicaid that may help pay for assisted living and home care with the ability to keep your home and leave it to your children or spouse.

It’s very important for seniors and their children to speak with an Elder Law attorney before taking a reverse mortgage, so that they can develop a plan to protect the family’s assets, ensure eligibility for Medicaid, if necessary, and prevent any surprises, like a foreclosure notice.

08/07/2017

The loved ones of veterans need to follow certain steps in planning for the future.

Veterans and their loved ones need to take a number of additional steps when it comes to estate planning. A useful checklist is provided in an article from The Wadena Pioneer-Journal, “What survivors should know; A veteran/retiree checklist.” Think of it as a starting point, and discuss these items with your estate planning attorney, who can guide you further.

Military File. This should include your retirement orders, your DD 214, separation papers and medical records.

Military Retired Pay File. Make sure you have the claim number of any pending VA claims, along with the address of the VA office being used, a list of current deductions from benefits, and the name, relationship and address of the beneficiary for any unpaid retired pay at the time of death.

Annuities File. Be sure to include information about the Survivor Benefit Plan (SBP), the Reserve Component Survivor Benefit Plan (RCSBP), the Retired Serviceman's Family Protection Plan (RSFPP) and your civil service annuity.

Important Contacts. Maintain a list of banking and credit information in a secure location. This should include bank account numbers, the location of all deposit boxes, savings bond information, all stocks, bonds, and any securities, credit card account numbers and mailing addresses and 401(k) accounts.

Memberships. Keep a membership listing of all associations and organizations with their contact and membership fee information.

Family and Business Contacts. Create a list of all friends and business associates and their contact information.

After preparing all of this, make sure to address the following:

Burial. Have a discussion with your next of kin about your wishes for burial and funeral services. Include the cemetery location and type of burial. You should also consider pre-arranging your funeral services at your local funeral home.

Will. Once your decisions have been made and you’re comfortable with them, have a will prepared outlining specifics by an estate planning attorney.

Notifications and Document Locations. Make sure to tell select family members where your important documents have been placed to avoid any confusion. The following is a list of the organizations that should be notified in the event of a veteran’s passing:

07/14/2017

You might think that any doctor seeing patients over a certain age would automatically screen for Alzheimer’s or other dementia-related diseases, but until now that has not been the case.

As of January 2017, Medicare will now begin reimbursing doctors for screening and providing information about care planning for patients with Alzheimer’s and other cognitive impairment diseases. What seems like common sense public health policy, took many years of advocacy from patient groups.

Santa Cruz Sentinel’s article, “Diagnosing Alzheimer’s: Medicare now pays doctors to stop and assess memory loss,” reports that more than 5 million Americans are living with Alzheimer’s, and as many as 16 million will have the disease in 2050. The cost of caring for those with the disease and other types of dementia is also skyrocketing. In the U.S., it’s estimated to total $236 billion in 2016 and is anticipated to increase to $1.1 trillion by 2050.

However, many people are unaware that they are afflicted with the disease: only about 50% of Americans are diagnosed. Experts contend that many doctors don’t take the time required to test for Alzheimer’s disease. But the new Medicare billing code will provide more incentive for primary care doctors to take the time for more evaluation and care-coordination.

An early and documented diagnosis—along with access to care planning services—gives Alzheimer’s patients better outcomes. It’s even possible to see signs of cognitive problems before the person realizes it themselves. However, research thus far, suggests that medications will only be effective in the early stages of the disease, when the symptoms are the mildest. Therefore, primary care doctors must look for those mild cognitive problems.

However, many physicians aren’t equipped to help their patients take advantage of the new Medicare rule. The issue is that most front-line physicians typically aren’t trained in this area. They first need to understand how to assess these patients before referring them to neurologists or to develop care plans.

A spokesperson from the Centers for Medicare & Medicaid Services says that the new rule does not include anything about educating doctors. Many patient advocate groups are mobilizing to educate physicians, some in tandem with their states, to increase awareness of the new coverage and to encourage doctors to include screening during their patient appointments.

07/12/2017

All too often, adult children are at a loss when their elderly parents encounter a health care emergency. If the kids can’t find health care proxies and DNRs (Do Not Resuscitate orders), they won’t be able to help their parents the way their parents had wished.

Before an emergency strikes, certain legal documents should be prepared so that children or other trusted family members will be able to help loved ones. Explain to elderly parents that this simply means that their wishes will be known and it is necessary to do this while they are healthy and well, or at least able to articulate their wishes. That means speaking with an estate planning attorney to have the documents created and also making sure that family members know where important papers are located.

Las Cruces Sun-News published an article about this topic, “Getting affairs in order,” that suggests if you have siblings or other relatives, you need to think about who will be the health care proxy.

Consider who among you shares similar views and values about life and medical decisions as your loved one. You should also name an alternate proxy. It’s important to have a detailed living will, so that the loved one can choose the amount of authority the proxy will have over their medical care and the types of decisions he or she can make. Make sure that the proxy and alternate are comfortable with this responsibility. He or she must then complete the legal forms detailing their wishes. Start the process by talking with their doctor and consulting with an elder law attorney.

Failing to plan in advance may result in your inability to gain access to the information you need or to act on your loved one’s behalf, if they’re unable to do so. You can avoid time-consuming and costly court fights by working with your loved one to prepare these documents.

Other important health care documents include a medical directive or a “living will” or “advance health care directive” that describes the kind of care your loved one wants to receive if and when they become ill or incapacitated. This must be completed while your loved one is of sound mind and can decide what treatments they want to receive.

A durable power of attorney for health care allows you to make health care decisions for your loved one. On the other hand, a durable power of attorney for finances lets you manage your loved one’s financial affairs. A HIPAA release says that you have access to their health records and medical staff.

Another important document is a revocable living trust. This allows your loved one to retain control over their estate, while making transfers of his or her assets to beneficiaries. They select property to go into the trust and who will receive it. During their lifetime, they act as trustees (managers) of their own living trust. A revocable living trust allows the estate to avoid probate at the time of death.

A will needs to be prepared so that your loved one can convey their assets and other personal property as they see fit if a probate is necessary. An estate planning attorney will help draft and execute these documents. Remember that the documents are not simply written up and stored somewhere. Every four or five years they need to be updated to take into account changes in family situations and changes in the law.

07/05/2017

How much Americans pay for elder care may be surprising, but there are sources that can help. Another surprise: millennials spend the largest percentage of their income on caregiving. Is it because their income is that much less, or are they more generous?

According to a CBS MoneyWatch article, “How to ease the pain of paying for elder care,” the cost of caregiving for parents, spouses or partners is shared by members of all generations, although the percentages vary. Baby Boomers spend 13% of their annual income on unpaid caregiving, and members of the Silent Generation, ages 71 to 91, spend about 25%, mostly on spouses or partners. The GenXers—ages 35 to 50—spend about 24% of their annual income on caregiving for parents, and millennials (ages 18 to 34) spend the largest percentage, at 27%. If you thought that millennials were still living off of their parents, it’s time to change that stereotype!

To address the impact that this cost has on the household, have a family meeting to assess your family’s financial and aging status and to plan for what may be required throughout the year. These types of discussions can help you plan for future elder care expenses in order to place them into a budget, along with your own retirement savings and savings for children’s education.

One source: ease the financial burden of caring for a loved one by investigating government programs. Many advocates are currently anticipating coming legislation that will aid family caregivers. State and local governments may also offer tax breaks and other aid programs for seniors, particularly those individuals needing home renovations to stay in their homes. Those tasked with caregiving should also look into neighborhood religious and community groups for support. There may be senior- and disabled-specific funding programs, along with able-bodied volunteers who can help lighten the load.

Depending on the family’s financial situation, including time constraints due to work schedules, it might make sense to look into professional help. An elder law attorney should be able to recommend an aging life-care professionals (formerly known as “geriatric care managers”) who will be able to help the family delve into elder care resources, including financial help. These professionals are usually social workers, gerontologists or other health care professionals with a focus on helping the elderly. They will be able to help you and your family plan for medical emergencies. Your elder care attorney will also work with your family to make sure that important documents, including power of attorney, health care proxies and other important documents are in place. Doing the planning in advance of an emergency is advised, since you will have more options and avenues of assistance.

06/28/2017

It’s easy to talk with loved ones about happy events, but conversations about your end of life wishes are more important than you might think. Consider the arguments and hurt feelings that could be avoided, if your loved ones know exactly what you want, and why.

While most of our lives pass with only minor incidents, as we age the likelihood of being struck by a serious illness or having an accident increases. This means that our loved ones may face the difficult decisions that come with a parent’s passing. Making sure that your family members know what your end-of-life preferences are and discussing your wishes, along with putting an estate plan into place, can ease everyone’s mind and make a difficult situation a little less stressful.

The website seniorhomes.com posted an article, “10 Steps to Communicate Your End-of-Life Wishes.” According to the article, the most important question when it comes to communicating end-of-life wishes might be, “how to do it?” Luckily there are actions you can take to make the process easier for you and your family. Get going now, before it’s too late … and make it a priority.

Planning. There’s no better time than the present to let your family know about your final wishes. Start by drawing up a living will that states your treatment and care preferences in the event you are unable to speak for yourself. You should also sign a durable power of attorney that appoints one or more family members or trusted friends to make medical decisions for you if you become incapacitated. Get that paperwork started today.

Clarity. It’s not pleasant to dwell on becoming too ill to make healthcare and other important decisions, but a critical injury or debilitating illness can occur at any time. As a result, it’s vital to be clear about your wishes as soon as possible—just in case.

Opportunity. Finding the appropriate time to discuss end-of-life issues can be tough, but there are certain events may give you the opportunity to do so. Possible occasions include those related to milestones like the birth of a child, marriage, death or serious illness of a loved one, retirement, an anniversary, during holiday gatherings, or when you create your will or other estate planning. Hopefully, you will have this conversation before an injury or a major illness that requires you or another family member to move out of the home and into a long-term care setting.

Discussions. Have these end-of-life conversations early to make certain that everyone understands your wishes. Your preferences may also change over time and necessitate future discussions on the subject.

Permission. Ask your loved ones for permission before launching into the topic. This will reassure them that you respect and honor their wishes.

Purpose. Your conversations with family need to include two important goals: (i) to be sure your financial and healthcare wishes are expressed and honored; and (ii) to give them the information and confidence they need to make future decisions.

Setting. Have the talk in a quiet and comfortable setting, such as a private spot without distractions. Be mindful of your state of mind and that of other family members.

Listening. Whatever your role in discussing end-of-life wishes, it’s important to listen carefully. Be certain that you hear and understand what your loved ones are saying.

Who participates in this conversation? Be aware that a loved one may want to talk about end-of-life wishes in private.

Pace. If you’re listening to a loved one express their wishes, let them set the pace and don’t argue about their wishes. They may not be your wishes, and they may not make sense to you, but these are their choices.

A respectful and thoughtful mindset will be needed, both by the person who is conveying their end-of-life wishes and family members. If for some reason, the conversation is not going well, you may find that an estate planning attorney can provide further pointers on how to help move the discussion along.

06/21/2017

It’s not as simple as packing everything you own and heading south. Careful financial and tax planning and a test run will help avoid major hassles if you decide to follow this well-trod path.

Most people live where they do because of either work or family or both. But when retirement is on the near horizon, dreams of moving and starting a new chapter in a new location begin for many Americans. According to a study from Merrill Lynch, people believe that they are free as birds to decide where they live at around age 61.

CNBC’s article, “A financial flight plan for snowbirds,” says that it's not surprising to see retirees move, at least part time, to their dream destination. More than a third of retirees surveyed, told Merrill Lynch that they’d already moved, and another 27% anticipated moving soon. But before you begin splitting time between two or more states, think about which state you want to be your primary place of residence, or domicile because you can have multiple residences—but only one domicile.

You should consider the advantages of choosing one state instead of another, like the fact that there are several warm weather states that don’t have a state income tax. Others have tax breaks on retirement income and on real estate taxes for older residents. Estate taxes can also be more favorable in some states than in others.

Once you’ve decided, be prepared to show the government that the state you picked is truly your domicile state. Some states have investigated people who say they’re now residents in other states and who say they don’t owe any taxes.

Each state has its own requirements to prove residency. For example, some basics are heading to the local DMV and changing your driver's license, as well as changing your mailing address and tax return address. A big mistake people make is having their income tax return sent to the wrong state. That can be a bad move, since the federal government and state governments share this type of data.

You should also speak with an experienced estate planning attorney in your new domicile state to be certain that all of your financial and estate-planning documents, like your will, powers of attorney, and healthcare or medical directives, still are legal under the laws of your new state.

Don’t forget to change your auto insurance policies so that you are properly covered in both states.

Our advice? Rent in the new state before you buy. You might find that you miss seeing your grandchildren and children, or that your dream location isn’t exactly what you thought it was. This is a big change at a critical point in your life. If you change your mind, that house that was such a bargain may become a financial disaster, if you want to sell it fast.